Photo Permission Dilemma

MeganS

I have a photo that I took at a school picnic of a girl using sidewalk chalk. Her face is down and in a slight shadow. At the time, (several years ago now), I asked the mother if I could take her photo and use it as a reference for a painting. I did give her my card but I did not write down her name. She verbally gave me the ok to paint her child. 

Is that good enough? The child was in a public place at a school event. She was not a student, but a younger sibling of one of the kids. 

I could take liberties and adjust the facial features as to not look like her, but I think that's creepy for me to look at. 

Thoughts?

Richard_P

Do you intend to sell the painting?

dencal

MeganS

Richard's question is important.

Other thoughts;

If the girl is not recognisable there should be no problem.
The verbal consent is not worth the paper it's written on.
Your card is likely lost, destroyed or discarded, the recipient probably can't remember the exchange.
Is the girl now an adult? It may be her consent you need.
A template model release is available free on the net.
Even if proceedings under the copyright legislation finds in your favour, it is vexatious, time consuming and expensive.
It is highly unlikely anyone will recognise the person but If exhibited, or picked up by a newsletter or magazine, child photographs / images are increasing In litigious sensitivity.

Denis

MeganS

Yes, I intend to sell the painting. I sell pretty much anything. The view is almost exactly like clara's flowers but the forehead is showing as is the hair. It's questionable whether or not it's recognizable. She does have very distinctive curly hair. @dencal @Richard_P Thanks for responding. 
 

tassieguy

From what I remember about copyright, which admittedly isn't much, I seem to remember that there is no law against taking an ordinary photo of someone and using it. Even without their permission. The copyright in the picture belongs to the photographer and not the subject of the photo. If I took a photo of a street scene  with people in it and decided to paint it photo-realistically so that people might be able to recognize themselves I think I am free to do so without infringing any copyright or privacy laws.

dencal

Rob

extract from Wikipedia

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity.

There are common law rights and statutory provisions of varying kinds in most developed jurisdictions.

Denis

tassieguy

Denis, in Australia (and I suspect most other common law countries) there would only be grounds for a lawsuit under passing off  laws where the use of a person's image is used specifically to sell a product with the implication that the person depicted  endorsed the defendant's goods, or had some connection with a product.

Generally, if an image of a person is used, then the law, as established in Honey v Australian Airlines, would apply. In that particular case, the court would not award damages after the defendant, Australian Airlines, used a photograph on a poster showing athlete Gary Honey in sporting mode without his permission. It was held that the poster depicted sporting prowess and high achievement in general rather than a particular person. Also, in tort, you need to establish damages and in the case of a painting of an ordinary person on the street that would be problematic. If you could sue just for having your image used without permission tens of thousands of people at a televised football match, or people seen in a TV news broadcast, for example, would be able to sue. If I get time I might research this question more thoroughly by looking at the latest case law.

tonybluegoat

tassieguy said:

Denis, in Australia (and I suspect most other common law countries) there would only be grounds for a lawsuit under passing off  laws where the use of a person's image is used specifically to sell a product with the implication that the person depicted  endorsed the defendant's goods, or had some connection with a product.

Generally, if an image of a person is used, then the law, as established in Honey v Australian Airlines, would apply. In that particular case, the court would not award damages after the defendant, Australian Airlines, used a photograph on a poster showing athlete Gary Honey in sporting mode without his permission. It was held that the poster depicted sporting prowess and high achievement in general rather than a particular person. Also, in tort, you need to establish damages and in the case of a painting of an ordinary person on the street that would be problematic. If you could sue just for having your image used without permission tens of thousands of people at a televised football match, or people seen in a TV news broadcast, for example, would be able to sue. If I get time I might research this question more thoroughly by looking at the latest case law.

Thanks for that.

cadia

This painting is so beautiful!!! I'm sure if the mom saw she'd love to buy it! While you're looking into this, could you still show it at a gallery or show with a NFS on it and be in the clear for now? Myself, I don't feel the facial features would be recognizable because of the point of view.

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